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RUBY:

From Schwartz Media, I’m Ruby Jones. This is 7am.

Last month, under the cover of the federal budget, the Coalition government rushed through new laws, legalising the indefinite detention of refugees.

Australia’s embrace of indefinite detention puts us at odds with international law, and it’s led to condemnation from human rights groups.

Today, national correspondent for The Saturday Paper Mike Seccombe; on how Australia got to this point, and what it means for those seeking safety in our country.

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RUBY:

Mike, the indefinite detention of refugees has long been a key plank of Australia's immigration policy, and Australia is the only country that deploys this policy. But how did it come to be a part of our approach to asylum seekers?

MIKE:

Well, to answer that, you have to go back two decades roughly, to the infamous case of Ahmed Ali Al-Kateb.

Al-Kateb was born in Kuwait. He was the child of Palestinian refugees. But Kuwait doesn't grant citizenship based on place of birth, so Kateb was technically stateless. After the first Gulf War in the early 1990s, Kuwait pressured hundreds of thousands of Palestinians to leave the country. So Al-Kateb spent years living illegally around the Middle East before making his way to Australia, in 2000, by boat.

So once he gets to Australia, he's denied a visa and is placed in immigration detention, where he remained for a number of years. So in 2002, he wrote to the then immigration minister, Philip Ruddock, requesting that he be removed back to Kuwait or Gaza, but because he didn't have Kuwaiti citizenship, he couldn't be sent there. And Gaza was occupied territory subject to Israeli control, and Israel wouldn't accept him either.

So Al-Kateb couldn't be removed anywhere because he was stateless. And so he remained in indefinite detention. And this case went to the High Court.

RUBY:

And what did the High Court find Mike?

MIKE:

The High Court found that, yes, Al-Kateb could be indefinitely detained because there were no other options and that the Migration Act allowed for indefinite detention and that was compatible with the Australian Constitution. And this led to outrage from the left in politics in particular, and demands for a National Bill of Rights. And this has shaped our refugee policies ever since.

RUBY:

And how has it done that, Mike? How has this case shaped Australia's refugee policies?

MIKE:

Well, the decision to left a cohort of refugees in the invidious position of not being able to be sent back, and therefore potentially being held in indefinite detention.

But in 2014, the current government introduced legislation essentially providing that they could be sent back.

But, and this is important, the clear motive behind this was not to send them back, but to try to curtail their ability to appeal visa refusals. It was intended to stop people appealing to the courts. You know, it wasn't to send people back where they came from, into danger. It was an effort to take the law out of the law, to cut the courts out and leave the decisions on these matters to ministerial discretion.

RUBY:

Ok so what you’re saying, Mike, is that there is a group of refugees who have been here in Australia in indefinite detention. And the government has tried to legitimise that detention - specifically through this law that it passed in 2014? So how many people are affected by that?

MIKE:

Well, according to the government, and I think accepted by the opposition, there's about 21 of them. Although I've spoken to immigration lawyers who say potentially it's a couple of hundred at the moment. And, of course, there could be many more in the future. So there's some dispute even about how many of them there are.

And one of them, a man known as AJL20, a Syrian citizen who came to Australia as a child in May 2005, is one of them. He's in the situation where the government hasn't sent him back to Syria, but he's not being allowed out of immigration detention.

So he falls into a category which his lawyer, Alison Battison, calls ‘the totally screwed’. They have essentially two really bad options.

So she took AJL20’s case to the federal court and essentially they argued that this new section gave the government power to refoul him back to Syria. And they should do that, or they should release him, one or the other.

And in September last year, the federal court found that his continued detention was unlawful. So he was released, and the government quickly appealed this. Went straight to the High Court. And even before the high court has delivered a judgement on this, it's rushed through new laws in parliament to deal with the situation, so obviously it was of the opinion that it would probably lose in the High Court.

RUBY:

Mhmm, so, what you’re saying is AJL20’s case was a challenge to the existing law. The government thought that law would actually be enough to allow for indefinite detention of refugees like him, but they’re now worried that the High Court might strike that law down - so they’re rushing through another piece, a new piece, of legislation. Can you tell me about that legislation?

MIKE:

Well, the legislation was called: The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021. Which on the pretext of safeguarding refugees from being refouled, that is being sent back whence they had fled to face, you know, possible persecution, torture, ill treatment, other serious human rights violations provided for indefinite detention. So that bill passed on May 12 with the support of Labor.

Archival Tape -- Andrew Wilkie:

“Thank you deputy speaker. And good evening.”

MIKE:

And only one member of the House of Representatives stood up to speak against it.

Archival Tape -- Andrew Wilkie:

“I disagree in principle with the whole idea of what would amount to indefinite mandatory detention,”

MIKE:

and that was Tasmanian independent Andrew Wilkie, and he did not hold back.

Archival Tape -- Andrew Wilkie:

“It's a crime against humanity to hold anyone in detention indefinitely. And that, of course, as I've remarked already, would be allowed for under this bill if it should become law.”

MIKE:

He effectively accused his major party parliamentary colleagues of implicating themselves in a crime against humanity. Wilkie told the handful of members present in the chamber at the time, that he disagreed on principle with the notion of indefinite detention, which, as we know, has been a feature of our immigration system since that High Court decision.

Archival Tape -- Andrew Wilkie:

“Let's not forget that arbitrary immigration detention, as practised in this country, as legalised tonight is immoral and illegal under international law. It is immoral in that we have a moral obligation to give people protection, to hear their claims and to give them refuge if their claims are accurate.”

MIKE:

But he particularly was angry that this bill would now allow that someone has had their visa cancelled for whatever reason and is unable to be returned to their country of origin, could be held in detention potentially for the rest of their days.

Archival Tape -- Andrew Wilkie:

“Indefinite mandatory detention is at odds with numerous international agreements which this country has signed up to in good faith.”

MIKE:

And he reminded his colleagues that under the Rome Statute, which is an international agreement to which Australia is a party, it is explicitly detailed that it is a crime against humanity to hold anyone in detention indefinitely.

Archival Tape -- Andrew Wilkie:

“And really, this bill is targeted at giving the government more power to detain refugees and to hold them in detention indefinitely. That's the bottom line, deputy speaker, “

MIKE:

So this is part of a trend, I guess, in migration legislation to attempt to essentially take piecemeal what Australia wants from international law, and ignore the bits that it doesn't like.

So essentially what's happening is that the government is taking authority away from the courts, and centralising more power in the hands of the minister.

RUBY:

We'll be back in a moment.

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RUBY:

Mike, the federal government has just passed these new laws that allow for the indefinite detention of refugees, and it seems like this was motivated by their fear of losing a High Court ruling. But what does that mean, that our government is essentially trying to get around the courts in this way? What are the ramifications of that?

MIKE:

Well, this is something else that Wilkie took aim at:

Archival Tape -- Andrew Wilkie:

“I also disagree with the whole notion of us disrespecting the ruling and the intent of the federal court.”

MIKE:

You know, he condemned the government for disrespecting, as he called it, the courts.

Archival Tape -- Andrew Wilkie:

“I think it's poor practice that the government, they just keep changing the law until, until it finds a workaround of the federal court”

MIKE:

As David Manne, who's the executive director and principal solicitor for Refugee Legal, as he said, you know, it's taking the law out of the law. And Manne harked back to another case that he was involved in:

Archival Tape -- David Manne:

“For example, in the Malaysia case…”

MIKE:

When the former Labour government proposed what came to be called the Malaysia solution, that would have seen 800 odd asylum seekers sent offshore,

Archival Tape -- David Manne:

“The High Court emphatically ruled by a majority of six to one that the government's proposed expulsion of these people to Malaysia was unlawful and prohibited, and principally because Malaysia was not bound by international or domestic law to process or to protect refugees.”

MIKE:

So the government response to that was to strip out all those protections from the Migration Act and replace them with provisions

Archival Tape -- David Manne:

“So that the minister need not look at this issue of whether there are appropriate international human rights or domestic law protections. The rules of natural justice were asked.”

MIKE:

The minister doesn't have to take into consideration the ability of international human rights or domestic law protections in the country to which they're sending them. So, as he puts it, the only consideration written into the changed legislation, was whether the minister considered the transfer to be in the ‘national interest’.

Archival Tape -- David Manne:

“which is essentially a political judgement, whatever that may mean, whenever in our nation's political life that question arises. It's a political judgement.”

MIKE:

You know, a man sees that as a political judgement. And I think that's essentially true.

RUBY:

It is a political judgement, Mike. And that raises another important point, because this is a bipartisan approach. This most recent bill, it was passed with the support of Labour. So how much does Labour have to answer for here for falling totally in line with these kinds of border policies, not just now, but for the past decade?

MIKE:

Well, I wouldn't quite say totally in line, in this case they made a couple of minor amendments, many of them not actually intended to be used.

Archival Tape -- David Wilkie:

“It's as recently as February this year that I introduced into the parliament a private member's bill, the Ending Indefinite and Arbitrary Immigration Detention Bill 2021, which received no support from the government nor the alternative government.”

MIKE:

So is Labour to blame? Yes, it's put forward some of these changes itself, but mostly it's been the coalition pushing it.

Archival Tape --

“And I will take this opportunity, deputy speaker, to remind honourable members of that bill, because it just goes to show there are viable alternatives to the way we detain people in this country.”

MIKE:

And Labour basically too scared of the political consequences of not going along.

RUBY:

Mm. And, Mike, as you mentioned earlier, these laws are in violation of international human rights law but what does that actually mean? Is there any way that we would be held accountable for that violation?

MIKE:

Well, no, not really. There might be, indeed, there has been, I would argue, damage to our international reputation. But really, it's at a domestic level that things need to change, you know, the weaponization of migration law and border security for political purposes has been a very ugly development of the past couple of decades. And I wish, and I think a lot of other people, too, wish it would stop.

And this, of course, puts us in the awkward position of looking like hypocrites internationally. I mean, you know, we criticise China, in particular, for its human rights violations. We criticise other countries periodically for theirs, and they would be perfectly within their rights, indeed, I think China has had to go back at us for our own abuses.

RUBY:

Mike, thank you so much for your time.

MIKE:

Thank you for talking to me.

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RUBY:

Also in the news today:

Victorian health authorities say they’re concerned about the transmission of Covid-19 through what they’re terming ‘fleeting’ encounters between strangers.

Covid-19 testing commander Jeroen Weimar says it’s likely the virus has been transferred four times this way, using the example of people brushing against each other in a small shop.

The Victorian Covid-19 outbreak is now at 54 cases, with more than 320 exposure sites.

The state government has yet to announce whether or not the 7 day lockdown will be extended.

I’m Ruby Jones, this is 7am, see you tomorrow.

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